Citation Nr: 1319713 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-08 189 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for claimed bilateral pes cavus with stress fractures, to include as secondary to the service-connected plantar fasciitis. 2. Entitlement to service connection for claimed costochondritis. 3. Entitlement to service connection for claimed arthritis of the knees. 4. Entitlement to service connection for claimed arthritis of the hands. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2003 to March 2004 and from January 2005 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the RO. In an October 2007 rating decision, the RO denied service connection for bilateral pes cavus and costochondritis, which was reconsidered and affirmed in an April 2008 rating decision. The Veteran appealed that decision. In a May 2009 rating decision, the RO denied the Veteran's claims of service connection for arthritis of the knees and the hands. The Veteran appealed that decision. In February 2013, the Veteran testified from the RO at a hearing held with the undersigned Veterans Law Judge by way of videoconference technology. A transcript of the hearing has been associated with the record. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records, dated from January 2008 to October 2012, that are pertinent to the present appeal. Additionally, in the May 2009 rating decision, the RO denied service connection for bilateral shin splints. The Veteran submitted a Notice of Disagreement, and a Statement of the Case (SOC) was issued in April 2010 that included the claim of service connection for bilateral shin splints. However, in the May 2010 VA Form 9, Appeal to the Board, the Veteran indicated that he was only appealing the claims of service connection for arthritis of the knees and hands. See 38 C.F.R. § 20.202 (2012) (if a SOC lists several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all issues or must specifically identify the issues being appealed). There are no other submissions that could be construed as a timely Substantive Appeal, and the RO has not certified the issue as being on appeal. Therefore, the Board finds that an appeal was not perfected as to the claim of service connection for bilateral shin splints. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). Accordingly, the issue is not on appeal, and no further consideration is necessary. Further, in an October 2012 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD), and assigned a 30 percent evaluation effective on August 21, 2006. The action constituted a full grant of the benefits sought, and the claim of service connection for claimed PTSD is no longer pending appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, there is evidence that the claimed bilateral foot, knee and hand disorders as well as the costochondritis may be associated with an in-service injury or disease. First, the Veteran claims that his bilateral foot disorder, specifically pes cavus, was manifested during service. During a January 2008 VA examination, the Veteran reported suffering stress fractures in his feet after a 10 mile march during basic training. An examination of the feet revealed bilateral foot pain, and the examiner noted an otherwise normal foot examination, bilaterally. In a July 2012 VA treatment note, the Veteran reported that his bilateral foot pain symptoms began nine years earlier during basic training after walking up hills for approximately 15 hours per day. The diagnosis was that of chronic foot pain. During the February 2013 hearing, the Veteran testified about injuring his feet during basic training approximately one week before graduation. He stated that, after two consecutive days of marching over 15 miles with a rucksack, he suffered 10 to 15 stress fractures per foot. He reported having continued problems with his feet since that time. Additionally, the Veteran testified that his claimed pes cavus disorder developed along with his service-connected bilateral plantar fasciitis during service. The Veteran also testified that he was undergoing a magnetic resonance imaging (MRI) study of his feet later that week. Second, the Veteran testified that he began having chest pains after receiving a smallpox vaccine in December 2005 and was diagnosed with costochondritis by a physician while serving in Iraq. He reported having problems with the chest pain since that time. Finally, with respect to the other claims, the Veteran and his wife both testified that he had experienced arthritis of the knees and hands since service. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). For these reasons, VA examinations and medical opinions are necessary for determining the nature and likely etiology of the claimed costochondritis and the foot, knee and hand conditions. Additionally, in May 2011 VA treatment notes, the Veteran reported that he was treated by a private physician for pain. In a September 2011 VA treatment note, he reported being treated by "several outside providers" for his feet disorders. However, there are no private treatment notes associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to contact the Veteran in order to have him identify any VA, non-VA, or other medical treatment that is not addressed by the current record, to include any VA treatment records and private treatment records pertaining to treatment for his claimed chest, foot, knee and hand conditions. Of particular interest are the records of a VA MRI studies of the bilateral feet reportedly performed in February 2013 and any private treatment records pertaining to treatment of the claimed disorders. The RO must provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO then should obtain copies of all records from any identified health care provider and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed bilateral foot disorder. Any indicated studies, tests, and evaluations should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. After reviewing of the entire record and examining the Veteran, the examiner should identify all current foot pathology. For each diagnosis, the examiner should opine as to whether it is at least as likely as not that the identified chronic foot disability had its clinical onset during service or otherwise is due to an injury or other event or incident of the Veteran's periods of active service. In addition, the examiner should opine as to whether it is at least as likely as not that any current foot disability was caused or aggravated by the service-connected bilateral plantar fasciitis. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed costonchondritis. Any indicated studies, tests, and evaluations should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. After reviewing the entire record and examining the Veteran, the examiner should identify any chronic disability manifested by chest pain. For any diagnosis, the examiner should opine as to whether it is at least as likely as not that any current disability manifested by chest pain had its clinical onset during service or otherwise is due to an injury or other event or incident of the Veteran's period of active service, including a December 2005 smallpox immunization. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Finally, the RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed knee and hand disorders. Any indicated studies, tests, and evaluations should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. After reviewing the entire claims folder and examining the Veteran, the examiner should identify any chronic knee or hand disorder. For each diagnosis, the examiner should opine as to whether it is at least as likely as not that any current knee or hand disability had its clinical onset in service or otherwise is due to an injury or other event or incident of the Veteran's period of active service. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After completing all indicated development, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).